Indian Polity notes by Laxmikant - Union Government

                                                               Union Government

·         We have parliamentary system both at central and state level also called ‘Westminster model’.

·         The union executive shall consist of president, vice president, PM with COM and attorney general.

·         President is the head of executive.

    President of India

Article - 52 -62 deals with office of President.

Article 52: There shall be office of President of India.

Article 53: All executive powers of union, rests with the President.

·         Having a nominal & real executive at the same time is the peculiar feature of parliamentary system.

Election of President:

è Articles 54 and 56 deals with presidential election.

è He is elected indirectly by Electoral College through the system of proportional representation, by the means of ‘Single Transferrable vote’.

è The Electoral College consists of elected MPs and elected members of state legislative assembly (MLAs).

- However in 1992, by 70^th const. Amend. The MLAs of UT of Delhi, Pondicherry were also included in the Electoral College came into force in 1996.

- Totally there are (420) MLAs – INDIA, Total elected MPs (776) – total voter (4896)

- The value of vote of an MLA = (Total state population) / (no. of elected MLAs) X 1000.

NOTE: The base population will be taken as population of yr. 1971, for any election in India; not changed till 2026.

- Therefore, total value of votes of MLAs = 5,49,474.

 - The value of vote of an MP = total value of MLA votes / Elected MPs     = 708 ≈ 549474 ÷ 294

- Therefore, total value of votes of MPs = 5,49,408

- Hence we can conclude that there is parity between centre & state. Thus, president represents state & union equally. There is a principle of equality among the states.

- The candidate has to secure quota votes, in order to win the elections.

Quota = more than half of votes, polled & valid.

Article 58: Qualification for president of India.

• He must be citizen of India.
• Completed age of 35 yrs.
• No office of profit
• However MLAs, MPs, MLCs, ministers, Governors are exempted from office of profit.
• He should not have proven criminal charges.
• He should not be declared insolvent (Bankrupt)
• He should be mentally sound.

Conditions:

1.      The nomination of candidate must be proposed by 50 members of Electoral College & should be seconded by 50 members of Electoral College.

2.      The candidate has to make the caution deposit of 15,000/-

·         To get back deposit, candidate has to secure 1/6^th of total votes polled & valid.

·         This 1/6^th condition is common to all elections.

·         These conditions are justifiable to discourage non serious candidates.

Salary of president

·         It is fixed by Parliament, charged on the consolidate Fund of India.

·         Presently its 1,50,000/-

·         He is eligible for pension & allowances, facilities including rent free accommodation.

·         Salary cannot be reduced at any time including during financial emergency.

Terms & Tenure:

·         Usually for 5 yrs.

    Following are grounds on which vacancy occurs

          A.       1. Completion of tenure.

2.  New president shall be elected just before completion of tenure.

3. If election of president is postponed, same president continue in the office, not withstanding completion of 5yrs.

    B. Resignation: President addresses his resignation to vice president and vice versa.

            Similarly speaker – Dy. Speaker (Vice versa) – Lok Sabha

            Similarly Assembly speaker – Dy. Speaker (Vise Versa)

            State Legislature council chairman – Dy. Chairman (vice versa).

·         In 1969, Zakir Husain died during his office. However in 1971, Parliament made a law & described that, in case of simultaneous vacancies in the office of president, vice president, CJI in his absence, senior most judge of Supreme Court will act as president of India.

·         If vice president acts a president, he must address resignation of CJI.

•        So far no president resigned.

Impeachment of President:

è It’s a quasi- Judicial procedure.

è Art 58, 61 deal with impeachment. President is removed only during violation of const. But the term violation is not defined.

è This procedure is borrowed from America, but they defined the causes of removal.

è Motion can be initiated in any house of parliament. For that a notice of 14 days in advance, should be given to the initiating house, signed by 1/4^th of total members of that house. (initiated by  assistant M.P)

è After that, that house has to approve the motion with 2/3^rd of total members of house.

è Then the motion is transmitted to other house. The other house enquires the allegations against the president by appointing a committee.

è Before enquiry can plead his case directly or through attorney. After that, the house approves the motion with same majority, the president stands removed.

è In case of conflict, the motion gets defeated. So far impeachment motion has been imposed.

è Death is also the ground for removal.

è Invalidation of election SC invalidates election of president, except on 1^st ground new president shall get elected with as early as possible, as but not later than 6 months. Meanwhile vice president acts as president.

 Powers & Functions of president are classified as:

• Executive Powers.
• Legislative Powers.
• Financial Powers.
• Judicial Powers.
• Military Powers.
• Diplomatic Powers.
• Emergency Powers. - Part-‘18’

However, this classification is extra – constitutional

1.      Executive Powers :

·         Art 53, says all executive authority of the Union shall be vested with the president

·         Appointment is the most important executive power.

è P.M, COM on the advice of P.M.

è Government, CJI, other judges of SC, HC, CJ of HC.

è All E.C, F.C, UPSC, SC, HC, Govt., diplomats, chief of Naval, army, air force etc., all by the advice of C.O.M, headed by P.M.

2.      Legislative Powers :

è Under Art-79, President is a part of parliament but not a member parliament.

è President is a part of parliament as all the legislative------------------------

è He summons the parliament; address the parliament 2 times in a joint session of the parliament.

1.      Every 1^st meeting of every year.

2.      1^st meeting of newly elected Lok sabha (L.S)

è He dissolves L.S on the advice of P.M.

è He prorogues the parliament.

è He nominates 14 members to parliament.

è He promulgates ordinances. (Temporary law) under Art-123. When parliament is not in session.

è Such ordinance must be approved by parliament, within 6 weeks (45 days), from the reassembly of parliament.

è If approved, the ordinance becomes a law. If not approved/rejected, ordinance ceases to have impact.

è Hence it is most important legislative power of president.

è Similarly governor also promulgates ordinances under Art-213 through same procedure.

è It is co-executive power. [Ordinance making] with legislative powers of parliament.

è It is not a discretionary power (depends on advice of parliament).

è A bill becomes an act after receiving the assent of president of India.

è President’s prior permission is needed to introduce certain bills in the parliament.

Ex: Art-3: formation of new state, introducing bill in L.S.

·         Taking money from consolidated fund of India.

·         The bills which contains taxes in which state government is involved.

·         President causes the reports of UPSC, Finance commission, SC, ST commission to be laid before the parliament report of C.A.G.

3.      Financial Powers:

They are procedural in nature i.e., no tax can be imposed or no money bill shall be presents in L.S, no money is taken from consolidated fund without president’s prior permission.

4.      Judicial Powers:

Art-72 deals with Judicial Powers of president. He exercises certain judicial powers to ensure an element of Humanitarian aspect to correct the possible judicial errors.

• Pardon: Can pardon any sentence including death totally relieved.
• Remit (Remission) (Reduce): Reducing the length of the sentence with changing nature of sentence.
• Commute: Change the nature of sentence, without changing the length.
• Reprieve: (postpone) Staying the execution of sentence.
• Respite: (relief) some relief is given because of his/her special cord.

NOTE: These powers are also non-discretionary.

·         SC can interfere in the pardoning power of president if there is gross violation of procedure, political interest & vested interest.

·         Currently, convicts in Rajiv Gandhi by subsequent denial of pardon & execution of death have become controversial.

è Governor also exercises pardoning powers under the article 161, but not pardoning of death sentence.

•      Moreover his actions are confined to the law related to state only.

5.      Military Powers: According to Art.53, president is the supreme commander of armed forces.

·         He can declare war and conclude peace.

6.      Diplomatic Powers:

·         President appoints diplomats, ambassadors’, high commissioners to various countries.

·         Other diplomats appointed by countries will present their credentials to the president.

VICE PRESIDENT: Article – (63 – 69)

·         This office was borrowed from American constitution.

·         He is also elected just like president of India, same procedure. He is elected by an electoral college consisting of only MP’s only. (including nominated)

·         Moreover, the vote value of all Electoral College members is equal to one.

è Total of 545+245=790 (majority) [No vote value]

è In the original const. parliament used to elect V.P in a joint session. But in 1961. By 11^th const. Amend, it was dispensed with separate elections.

Qualifications: Same as president of India, but there is difference in conditions.

·         Nomination of a candidate must be proposed by 20 members and should be seconded by another 20.

·         Deposit is Rs. 15,000/-.

Tenure: Same as president for 5 years. (Vacancies occur same as that of president).

Removal procedure of V.P:

·         Const. of India does not mention any reason for removal.

·         Ground is deemed to be violation of const.

·         The motion relating to removal of V.P should be initiated in Rajya Sabha. For that a notice of 14 days in advance signed by 1/4^th of total members of house.

NOTE: 1/4^th of approval is common except for judges of S.C & H.C.

·         Later R.S has to approve the motion by any simple majority.

·         Again after this L.S approves the motion with same majority, V.P stands removed.

NOTE: This procedure is simple removal proud but not impeachment.

Ø  Both the houses must approve the motion separately else, the motion is defeated.

o   No house prevails over other.

Ø  If vacancy occurs in V.P office except on the 1^st ground, new V.P shall be elected with as early as possible.

o   No acting V.P in case of death of V.P during tenure the office of V.P is kept vacant.

Salary: Salary of V.P is determined by the parliament charged on consolidated fund & cannot be reduced at any time.

·         But V.P receives salary as chairman of R.S. Salary is Rs. 1,25,000/- apart from allowers, pensions.

Powers & Functions of V.P:

è He is the ex-office chairman of R.S by virtue. He presides over R.S and conducts business of R.S like speaker of L.S.

è V.P will act as president of India, in case of unexpected vacancies. (For maximum of 6 months only).

è V.P also performs or discharges functions of president when the president is unable to discharge his functions due to ill health/ otherwise, being abroad.

è There is no upper limit for discharging: No time limit.

·         During such period, he enjoys all the powers of president, allowances, facilities, powers, functions, salary.

·         During such time, V.P should not preside over R.S.

                                 PM with Council of Ministers. (C.O.M)

Art-74: There shall be C.O.M headed by P.M to aid and advice the president.

  -President shall act in accordance with the advice of C.O.M.

è In the original const.  no specific provision is present which binds president of India.

è However in 1976 by 42^nd Amend, Art 74 was amended with the word “shall” was inserted.

è In 1978, by 44^th Amend, another sentence was added i.e., “president may send back for reconsiderable of C.O.M, but COM are not bound to accept. If sent again, president should give his assent. Even if he does not give, it is deemed to be given.

Art-75: President appoints P.M on the advice of P.M other COM’s are appointed.

·         COMs are individually accountable to president and they hold office, during the pleasure of president.

·         COMs are collectively responsible to L.S.

è Absolute majority is more than half of 545 = 273.

·         If no party secures absolute majority, president can invite leader of such a party, need not be single large part which can form strong and stable government in president opinion.

·         President exercises his discretion in this case.

Ex: Jagjivanram vs Charan singh.

è Making or unmaking of COMs is the prerogative of P.M.(But constitutionally president)

è Entire government will be in power as long as it enjoys the confidence of L.S.

è The moment it loses its confidence, government is dissolved.

Size & Shape of COMs:

• Nothing is mentioned in const. regarding S&S of COMs.
• However, in 2003, 91^st const. Amend the size of COMs is determined i.e., it shall not exceed 15% of total members of L.S and no lower limit at L.S.
• Same 15% of lower house at state level. At state level minimum no. of ministers should be 12.

è Constitutionally, all COMs are equal in their status & ranks no division is made.

è However for admin. Conveniences, COM are classified as today as 3 categories on recommendations. Gopal swamy iyengar committee 1949. {This is extra constitutional}

•        Ministers of cabinet rank.
•         Minister of state rank. (with/without independence charge).
•        Deputy Ministers.

Cabinet Ministers: They are independent ministers, who are head of their particular department.

• All important portfolios are given the cabinet rank.
• P.M presides over the cabinet meeting.
• Usually a meeting is held for a week regularly.
• Hence, parliamentary system is called Cabinet form.

Minister of state (II class) {with/without independence charge}

Ex: Purandeswari to Kapil Sibel

Dy. Ministers are assistant to Mostate. (They are now not in practice)

Art-77: President makes rules and reg. for convenient txn of business among different ministers.

Art-78: It shall be the const. duty of P.M to convey, committee, furnish all decisions, developments of country to president.

·         PM is a mediators or bridge between COM and president.

·         President ensures collective responsibility.

NOTE: 74       84        163

            75        89        164

            77        89        166

            78        89        167

 è 163, 164, 166, 167 at state level is similar to 74, 75, 77, 78 at central level respectively. 

           

·         Under Art: 165 government of states (MP, CH, OR, JH) has to ensure that there must be special ministry for welfare of states.

·         However, BH was deleted after (JH) formation.